G.O.P. Bears Down on Kagan as Hearings Near

By SHERYL GAY STOLBERG

Published: June 24, 2010

WASHINGTON -- After weeks of lying low, Republicans on Wednesday began stepping up their attacks on Elena Kagan, and are laying the groundwork to oppose her confirmation to the Supreme Court by casting her as a partisan Democrat who has spent more time practicing politics than law.

When President Obama nominated Ms. Kagan, his solicitor general, to replace Associate Justice John Paul Stevens, Republicans quickly complained that she lacked judicial experience. Now, in a fresh twist, they are characterizing her as a ''political lawyer'' or ''political operative'' -- terms designed to undercut the Democratic argument that Ms. Kagan is hardly the first Supreme Court nominee who has never been a judge.

Senator Mitch McConnell, the Republican leader, made the ''political operative'' argument Wednesday in a speech on the Senate floor. He cited memorandums and notes Ms. Kagan wrote about campaign finance during the Clinton administration, including one in which she seemed to gleefully scribble in the margins that a ban on soft money ''affects Repubs, not Dems!''

''In other words,'' Mr. McConnell said, ''these memos and notes reveal a woman whose approach to the law was as a political advocate -- the very opposite of what the American people expect in a judge.''

Mr. McConnell's words are being echoed by other Republicans. In an interview with Fox News on Wednesday, the top Republican on the Senate Judiciary Committee, Jeff Sessions of Alabama, said that Ms. Kagan ''has less legal experience than any judge in the last 50 years'' and that ''most of her work has been political work.''

The Republican Policy Committee in the Senate makes much the same argument in a new memorandum assessing Ms. Kagan's political philosophy. It calls her a ''a liberal political lawyer with activist judicial sympathies,'' and cites a lecture Ms. Kagan gave at West Point in 2007, in which she described her time in the Clinton administration, saying, ''Most of the time I spent in the White House, I did not serve as an attorney; I was instead a policy adviser.''

The debate over Ms. Kagan has been sleepy -- some might say nonexistent -- in recent weeks, as senators have trained their attention on matters like the oil spill in the Gulf of Mexico. Unless Ms. Kagan fumbles at her confirmation hearings next week or some other unforeseen obstacle arises, members of both parties expect she will be confirmed.

Republicans have shown little appetite to block the nomination by filibuster, and the math in the Senate works against them: Democrats and Democratic-leaning independents account for 59 votes, more than enough to confirm Ms. Kagan.

But as the hearings draw near, Republicans are signaling they do not intend to let Ms. Kagan slip by without a fight. Their aides have been combing through tens of thousands of pages of documents from her tenure in the Clinton White House, where she served from 1995 to 1999, first as associate White House counsel and then as deputy director of the Domestic Policy Council.

''She's going to have a vigorous hearing,'' said Senator Tom Coburn, Republican of Oklahoma, in a telephone interview Tuesday.

The flurry of Republican attacks comes as both sides, along with their allies, are stepping up their arguments. Interest groups and senators are convening news conferences and hosting conference calls for reporters. So, too, is the White House, which rebutted Mr. McConnell's speech on Wednesday by saying Republicans were distorting Ms. Kagan's record.

''Republicans are getting increasingly desperate,'' said Ben LaBolt, a spokesman for Mr. Obama, adding that Ms. Kagan was simply providing Mr. Clinton with ''legal and policy options that reflected the president's well-established views.''

Ms. Kagan, who is perhaps best known for her time as dean of Harvard Law School, has spent much of her career alternating between academia and public service. She has worked on two political campaigns, those of Elizabeth Holtzman, who ran for the Senate in 1980, and Michael S. Dukakis, who ran for president in 1988. She also served as special counsel on the Senate Judiciary Committee during the Supreme Court confirmation hearings of Justice Ruth Bader Ginsburg.

She practiced law in the private sector for just two years, from 1989 to 1991, as an associate in the Washington firm of Williams & Connolly. But she has gained litigation experience as solicitor general, a job that requires her to argue cases before the Supreme Court -- in some cases defending laws she may personally disagree with.

''She's had two years at a major law firm where she never tried a case to a jury verdict or judgment,'' said Senator John Cornyn, Republican of Texas, adding, ''Obviously the job of political adviser is very different than that of a judge -- a judge can't take sides.''

In preparation for the hearings, Republicans have also been gathering statistics on the legal careers of other Supreme Court nominees who have never been judges. Since the Eisenhower administration, there have been just seven, according to a memorandum prepared by Republican Senate aides. They include the former chief justice, William H. Rehnquist, who was in private practice for 16 years.

PHOTO: Senator Mitch McConnell, who met Elena Kagan last month, calls her a ''political operative.'' (PHOTOGRAPH BY STEPHEN CROWLEY/THE NEW YORK TIMES)